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Is Administrative Law Unlawful?
“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous.” —Law and Politics Book Review While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting ...
Law and Judicial Duty
Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called "judicial review." The book sheds new light on a host of misunderstood problems, including intent, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent. The book is essential reading for anyone concerned about the proper role of the judiciary.
Separation of Church and State
In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later. Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-c...
The Administrative Threat
Government agencies regulate Americans in the full range of their lives, including their political participation, their economic endeavors, and their personal conduct. Administrative power has thus become pervasively intrusive. But is this power constitutional? A similar sort of power was once used by English kings, and this book shows that the similarity is not a coincidence. In fact, administrative power revives absolutism. On this foundation, the book explains how administrative power denies Americans their basic constitutional freedoms, such as jury rights and due process. No other feature of American government violates as many constitutional provisions or is more profoundly threatening. As a result, administrative power is the key civil liberties issue of our era.
Matters of State
A collection by the New Yorker columnist discusses how the presidential inaugurations of presidents from Truman and Eisenshower to Reagan and Clinton reflect an orderly transfer of power.
Purchasing Submission
From a leading constitutional scholar, an important study of a powerful mode of government control: the offer of money and other privileges to secure submission to unconstitutional power. The federal government increasingly regulates by using money and other benefits to induce private parties and states to submit to its conditions. It thereby enjoys a formidable power, which sidesteps a wide range of constitutional and political limits. Conditions are conventionally understood as a somewhat technical problem of Òunconstitutional conditionsÓÑthose that threaten constitutional rightsÑbut at stake is something much broader and more interesting. With a growing ability to offer vast sums of m...
Matters of State
This collection of essays, chosen by the Philip Hamburger from his 60 years of writing for The New Yorker, chronicles not only the people of US political life (Judge Learned Hand, Fiorello La Guardia, Dean Acheson, FDR, Eisenhower, Reagan, Clinton), but also the places and events, with special emphasis on presidential inaugurations (the author has attended, he thinks, 14). Here is one man's view, both funny and serious, of the glorious diversity of American politics--and of the better angels of our nature.
Friends Talking in the Night
From a writer of astonishing versatility, this wonderfully rich collection of pieces is both a memoir of Philip Hamburger's writing life and a vivid and various record of the world he has lived in. Hamburger first went to work for The New Yorker in 1939, under the aegis of Harold Ross, and he is still there--six decades and four editors later. He has wandered all over its pages as Our Man Stanley or Reporter at Large, doing Talk of the Town, Casuals, and Notes & Comment, writing Profiles, and more. And he has wandered all over the map, unearthing the secret souls of some fifty-five American towns and cities (from Hot Springs, Arkansas, to Butte, Montana) and bearing witness to the horrors of...
The Dubious Morality of Modern Administrative Law
Modern administrative law has been the subject of intense and protracted intellectual debate, from legal theorists to such high-profile judicial confirmations as those conducted for Supreme Court justices Neil Gorsuch and Brett Kavanaugh. On one side, defenders of limited government argue that the growth of the administrative state threatens traditional ideas of private property, freedom of contract, and limited government. On the other, modern progressives champion a large administrative state that delegates to key agencies in the executive branch, rather than to Congress, broad discretion to implement major social and institutional reforms. In this book, Richard A. Epstein, one of America...
Tocqueville's Nightmare
De Tocqueville once wrote that 'insufferable despotism' would prevail if America ever acquired a national administrative state. Between 1900 and 1940, radicals created vast bureaucracies that continue to trample on individual freedom. Ernst shows, to the contrary, that the nation's best corporate lawyers were among the creators of 'commission government'; that supporters were more interested in purging government of corruption than creating a socialist utopia; and that the principles of individual rights, limited government, and due process were designed into the administrative state.
